Full Judgment Text
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PETITIONER:
SHRI BRIJ MOHAN SURI
Vs.
RESPONDENT:
THE DISTRICT JUDGE, KANPUR & ORS.
DATE OF JUDGMENT: 23/01/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
AHMAD SAGHIR S. (J)
G.B. PATTANAIK (J)
CITATION:
1996 SCC (2) 579 JT 1996 (2) 289
1996 SCALE (2)254
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal has come up on reference dated November 28,
1995 to this Bench for considering the question of law
raised in this case.
This appeal by special leave arises from the order of
the learned single Judge of the High Court of Allahabad
dismissing the writ petition filed by the appellant who is
the owner of vacant land in Kanpur Urban agglomeration and
disputes the computation of ceiling. Three plots of land one
bearing plot No.113/41 Swarup Nagar to the extent of 501.64
sq. meters on which he had built up dwelling unit over
246.48 sq. meters; plot No.123/430 to the extent of 2675.20
sq. meters situated in Fazalpur, Kanpur over which he had
constructed factory admeasuring 898.90 sq. meters; and a
plot No.123/35 in a total extent of 3251.10 sq. meters on
which he had construction over 1905.75 sq. meters of the
land occupied by the factory belong to the appellant. On a
statement filed by the appellant under Section 6 of the
Urban Land (Ceiling and Regulation) Act, 1976 (for short the
Act), the Ceiling Authority after notice to the appellant
after filing statement by the appellant under Section 7 of
the Act prepared draft statement under Section 8 and issued
final statement under Section 9 declaring that the appellant
is having urban excess vacant land to the extent of 2121.65
sq. meters. On appeal the appellate authority held that the
appellant held 1603.25 sq. meters as surplus vacant land. As
stated earlier when the decision of the appellate authority
was questioned in the writ petition, the High Court upheld
the appellate order. Thus this appeal by special leave.
Smt. Sheil Sethi, learned counsel for the appellant,
contended that under Section 2(b) read with section 2(h) of
the Act, read with section 2(g), when the appellant had
constructed factories in accordance with the master plan and
the building regulations, entire area occupied by the
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factory as per the building regulations shall be excluded in
computing the ceiling limit of the urban land held by the
appellant. If that is excluded, indisputably there is no
excess land held by the appellant. The view of the High
Court is wrong in law. Shri Chauhan, the learned counsel
appearing for the State, contended that Section 2(c)
defines "ceiling limit" and as per section 4 (1)(c) in
relation to its application the Kanpur ceiling limit is 1500
sq. meters. Section 2(o) read with section 2(q) defines
"urban land" and "vacant land" respectively. Section 2(q)
excludes certain land. The land occupied by the factory is
not one of the lands exempted under section 2(q).
Consequentially, in computing the vacant land in the final
statement under section 2(g), the authorities are required
to compute only that land which stands excluded from the
purview of the Act. Therefore, appellant’s excess vacant
land would needs to be surrendered.
Having given our consideration to the respective
contentions, the question that arises for consideration is
whether the appellant has "in possession of excess urban
land". Section 2(b) defines "building regulations", means
regulations contained in the master plan or the law in force
governing the construction of buildings. Section 2(c)
defines ceiling limit, means the ceiling specified in
section 4. "land appurtenant" defined in section 2(g) in
relation to any building, means in an area where there are
building regulations, the minimum extent of land required
under such regulation to be kept as open space for the
enjoyment of such building, which in no case shall exceed
500 sq. meters or in an area where there are no building
regulations, an extent of 500 sq. meters contiguous to the
land occupied by such building and includes, in the case of
any building constructed before the appointed day with a
dwelling unit therein, an additional extent not exceeding
five hundred sq. meters of land, if any, contiguous to the
minimum extent referred to in sub clause (i) or the extent
referred to in sub-clause (ii), as the case may be.
Section 2(h) defines "master plan", in relation to an
area where there are building regulations, to mean the
minimum extent of land required under such regulations to be
kept as open space for the enjoyment of such building, which
in no case shall exceed five hundred square meters; or an
area where there are no building regulations, an extent of
five hundred square meters contiguous to the land occupied
by such building. "Urban land" has been defined in section
2(o), to mean "any land situated within the limits of urban
agglomeration and referred to as such area in the master
plan and.... ". "Vacant land" has been defined in Section
2(q) and reads thus:
"Vacant land" means land, not being
land mainly used for the purpose of
agriculture, in an urban
agglomeration, but does not
include-
(i) land on which construction of a
building is not permissible under
the building regulations in force
in the area in which such land is
situated.
(ii) in an area where there are
building regulations, the land
occupied by any building which has
been constructed before or is
being constructed on, the appointed
day with the approval of the
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appropriate authority and the land
appurtenant to such building; and
(iii) in an area where there are no
building regulations, the land
occupied by any building which has
been constructed before, or is
being construction, the appointed
day and the land appurtenant to
such building.
Provided that where any person
ordinarily keeps his cattle, other
than for the purpose of dairy
farming or for the purpose of
breeding of livestock, on any land
situated in a village within an
urban agglomeration "described as a
village in the revenue records,
then so much extent of the land as
has been ordinarily used for the
keeping of such cattle immediately
before the appointed day shall not
be deemed to be vacant land for the
purposes of this clause."
In Section 4 "ceiling limits" have been prescribed in
sub section (i) clause (c) where such land is situated in an
urban agglomeration falling within category C specified in
schedule - I, 1500 sq. meters. It is an admitted position
that in relation to application of the Act to the Kanpur
Urban agglomeration, Section 4(1)(c) is the result of
ceiling limit by which the holder is entitled to hold 1500
sq. meters of land. When the master plan is in operation,
the area within an urban agglomeration or any part thereof,
means the plan (by whatever name called) prepared under any
law for the time being in force or in pursuance of an order
made by the State Government for the development of such
area or part thereof and providing for the stages by which
such development shall be carried out. The construction
shall be in accordance with Section 2(g) of the Act.
Section 2 (g) envisages as under:
"land appurtenant", in relation to
any building, means -
(i) in an area where there are
building regulations, the minimum
extent of land required under such
regulations to be kept as open
space for the enjoyment of such
building, which in no case shall
exceed five hundred square meters;
or
(ii) in an area where there are no
building regulations, an extent of
five hundred square meters
contiguous to the land occupied by
such building.
and includes, in the case of any
building constructed before the
appointed day with a dwelling unit
therein, an additional extent not
exceeding five hundred square
meters of land, if any, contiguous
to the minimum extent referred to
in sub-clause (i) or the extent
referred to in sub-clause (ii), as
the case may be."
Therefore., no person shall construct any building with
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dwelling unit having plenth area, if the land falls in any
category of schedule I. Sub-clause (ii) of Section 2(g) says
that no person shall construct any building with dwelling
unit in excess of 500 square meters. In other words the
total extent of the land to which he is entitled to
construct within the vacant land would be not exceeding 500
square meters. In addition, he is entitled to the land to be
set apart as per the building regulations and the master
plan, as appurtenant land envisaged under Section 2(g) of
the Act. Any building constructed prior to the Act came into
force, the holder is entitled to the extent of 500 square
meters of land as appurtenant land and in any case not
exceeding 500 square meters. This is referable to dwelling
unit. "dwelling unit" has been defined in the Act in clause
(e), would mean in relation to a building or a portion of a
building, means a unit of accommodation in such building or
portion used solely for the purpose of residence. In other
words, the exemption sought to be given for the land
appurtenant is for the building used for residential
purposes of the said building and the holder of the land is
entitled to retain the appurtenant land either as per
building regulations or in any case not exceeding 500 square
meters as appurtenant land.
Section 2(g) defines "vacant land" to mean only land on
which construction of a building is not permissible under
the building regulations in force in the area in which such
land is situated; (ii) in an area where there are building
regulations, the land occupied by any building which has
been constructed before or is being constructed on, the
appointed day with the approval of the appropriate authority
and the land appurtenant to such building, (ii) in an area
where there are no building regulations, the land occupied
by any building which has been constructed before, or is
being constructed on, the appointed day and the land
appurtenant to such building.(iii) in an area where there
are no building regulations, the land purposes were also
excluded. Consequently, the other land remain to be vacant
land. Therefore, the said land becomes to be vacant land for
the purpose of the Act and thus requires to be computed
under Section 2(g) of the Act. In the final report, the
authorities are, therefore, directed to compute unit limit
accordingly.
The learned counsel for the appellant had applied for
exemption and the same was rejected. It is stated that
review petition has been filed. We need not express any
opinion about that.
The appeal is accordingly disposed of. No costs.